New rights-based approach to First Nations treaty-making rolled out

Canada, B.C. and First Nations Summit officials have together hammered out a new “rights-based” policy for treaty negotiations in B.C. to replace the previous one-size-fits-all approach.

The ‘Recognition and Reconciliation of Rights Policy for Treaty Negotiations in British Columbia’ policy will usher in a new way of dealing with treaties.

“It’s a substantive transformation,” said Carolyn Bennett, federal minister of Crown-Indigenous Relations in a phone interview. “It felt historic because it means no longer do people have to surrender their rights in order to get out from under the Indian Act.”

Terry Horne, chief of Yakweakioose First Nation near Chilliwack, said his community is part of the six- member Stó:lō Xwexwilmexw Treaty Association, which is at Stage 5 in the treaty process.

“It’s all good stuff, and it’s what we had during our negotiations,” said Chief Horne about the rights-based approach. “The big change is not having to extinguish rights and title to enter the process got put back on the table.”

Although the SXTA expects to sign a final agreement within the next five years, and this new policy could help other Indigenous groups.

“It does set some standards,” said Horne. “When we were in negotiations, we were pushing these same boundaries, which were groundbreaking, and were the first.”

The new policy was co-developed by treaty principals — Canada, the First Nations Summit and British Columbia — to offer guidance on how treaties, agreements and other arrangements are to be negotiated, consistent with the constitution, and commitments to implement the UN Declaration on the Rights of Indigenous Peoples in B.C., as well as international law, Indigenous laws and legal orders.

With the federal budget of 2019 containing provisions for forgiving treaty loans, the new policy could also be incentive for those who left the treaty process or never entered to begin with, Minister Bennett said.

The new policy “clears the way” for recognition of Indigenous rights and title, including self-determination, and could lead to restoring trust in the process, said Robert Phillips, a member of the First Nations Summit political executive.

“I think this will be very significant in making progress in treaty negotiations,” Phillips said, calling it “a breakthrough, and a step toward reconciliation.”

There might be some naysayers but he urges them to look closely at what’s in the policy.

The central feature is basing negotiations on the recognition and continuation of rights without those rights being modified, surrendered or extinguished when a treaty is signed.

“From this recognition, and more importantly the implementation of this new approach, it will foster more of a relationship between First Nations and the Crown. Parties would enter negotiations in the past and it was like a divorce. This is more of a relationship,” said Phillips.

It could help address longstanding issues that became obstacles as the treaty policy stalled over the years.

“We look forward to the breakthroughs that should result from these long-awaited innovations,” he added.

It also includes commitments to address shared or overlapping territories, and to respect the rights of Indigenous groups not participating in the B.C. treaty process.

A made-in-B.C. treaty negotiations process was created in 1992. Since then, 11 First Nations in B.C. have reached modern treaties with self-government and 28 First Nations groups are now in the advanced stages of negotiation.